FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

April 9, 2008

Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

DAVID S. THOMAS,
Plaintiff - Appellant,
v.
NEW MEXICO CORRECTIONS
DEPARTMENT; JOE ROMERO,
Warden; JAMES
LECHALT, Grievance Officer;
CHARLIE MARTINEZ, Correctional
Officer/Property Officer; ERMA
SEDILLO, Deputy Secretary of
Operations,

No. 06-2224
(D.C. No. CIV-06-0514 MV/LCS)
(D. N. M.)

Defendants-Appellees.

ORDER AND JUDGMENT *

Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.

This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

David Savoy Thomas, a New Mexico prisoner appearing pro se, appeals the
district courts dismissal of his 42 U.S.C. 1983 claim. He also seeks leave to
proceed in forma pauperis (IFP) on this appeal. We exercise jurisdiction under 28
U.S.C. 1291. Reviewing Mr. Thomass filings liberally, 1 we conclude that Mr.
Thomas cannot prevail on the facts he has alleged. We AFFIRM the district
courts dismissal of his claim and GRANT Mr. Thomas IFP status.
I. BACKGROUND
We draw the relevant facts from the averments of Mr. Thomass complaint.
On June 4, 2004, Mr. Thomas was released from federal prison into the custody
of the State of New Mexico. During intake proceedings at the Central New
Mexico Corrections Facility (CNMCF), Mr. Thomas repeatedly requested to
mail his personal property home at his own expense. A CNMCF property officer,
Officer Martinez, responded to Mr. Thomass requests by informing him that the
institution did not allow inmates to mail their personal property home, and Mr.
Thomas could donate his property or it would be destroyed. Officer Martinez
then asked Mr. Thomas to sign a property disposition sheet. Mr. Thomas refused
to sign the sheet and claimed that it was inaccurate. Mr. Thomas was later given

Because Mr. Thomas is proceeding pro se, we review his pleadings

and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard
v. U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
2

a CNMCF inmate handbook. Upon reading the handbook, he learned Officer

Martinez had violated CNMCF policy by refusing to mail his personal property.
Mr. Thomas sought to informally settle the issue with CNMCF officials.
When that failed to resolve the matter, he filed a grievance on June 21, 2004. A
month later, after receiving no response on his initial grievance, he filed a second
grievance. On July 27, 2004, Mr. Thomas was told that his grievance was denied
based on the property disposition sheet. Mr. Thomas alleges that his signature
had been forged on this sheet. Mr. Thomas appealed his grievance, and his appeal
was eventually denied. Mr. Thomas then filed a claim under the New Mexico
Tort Claims Act, which was eventually dismissed.
Mr. Thomas then filed this 1983 action in the New Mexico District Court.
He made three claims: he was deprived of his property in a manner unlike
similarly situated prisoners, creating an equal protection claim; he was deprived
of his property without due process; and he was subjected to cruel and unusual
punishment. He also accused Officer Martinez of committing fraud under New
Mexico law by forging his signature on the property disposition sheet. Under 28
U.S.C. 1915(e)(2) and Fed. R. Civ. P. 12(b)(6), the district court sua sponte
dismissed his complaint. Mr. Thomas then appealed to this court. 2
2

Although Mr. Thomass argument in his appeal focuses on the due

process issue, the relief he requests is a remand so that his entire case can
proceed. And, in his argument for review, he mentions the other issues raised
(continued...)
3

II. DISCUSSION
Dismissals pursuant to Fed. R. Civ. P. 12(b)(6) and section 1915(e)(2) are
reviewed de novo. Perkins v. Kan. Dept of Corr., 165 F.3d 803, 806 (10th Cir.
1999). For purposes of our review of the dismissal for failure to state a claim, we
presume that Mr. Thomass complaint allegations are true and construe them in
the light most favorable to him. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th
Cir. 1989) (per curiam). However, we are not bound by conclusory allegations,
unwarranted inferences, or legal conclusions. Hackford v. Babbitt, 14 F.3d 1457,
1465 (10th Cir. 1994). Because Mr. Thomas is a pro se litigant, we also construe
his pleadings liberally and hold him to less stringent pleading standards than
those for pleadings drafted by lawyers. Gillihan, 872 F.2d at 938. Dismissal of
his pro se complaint is proper only if it is obvious that he cannot prevail on the
facts alleged and it would be futile to allow him to amend. Perkins, 165 F.3d at
806.
Regarding Mr. Thomass due process claim, there is no deprivation of
property unless the State does not offer an adequate postdeprivation remedy. Mr.
Thomas acknowledges that Officer Martinezs actions were in violation of
CNMCF policy. This makes Officer Martinezs actions the sort of unauthorized

(...continued)
below. Accordingly, construing his filings liberally, we consider his appeal to
challenge all issues decided by the district court.
4

or random actions governed by Hudson v. Palmer, 468 U.S. 517 (1984), and
Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986). These cases hold that such a deprivation of
property is not a due process violation if there is a meaningful postdeprivation
remedy available. Hudson, 468 U.S. at 533; Parratt, 451 U.S. at 543-44.
Mr. Thomas alleges that the state relief is bogus in nature and suggests
that the officials are immune from liability. Civil Rights Complaint, dated June
14, 2006, B (Nature of the Case), at 22. However, the New Mexico State Tort
Claims Acts grant of immunity does not apply to liability for a violation of
property rights or the deprivation of any federal constitutional rights caused by
law enforcement officers while acting within the scope of their duties. N.M.
Stat. Ann. 41-4-12. Under New Mexico law, an employee of a local jail is
considered a law enforcement officer for purposes of the Tort Claims Act. N.M.
Stat. Ann. 33-3-28(A). Construing Mr. Thomass filing liberally, we can find no
reason to consider the New Mexico remedy inadequate. Thus, an adequate
postdeprivation remedy is available and there was no due process violation.
Regarding Mr. Thomass equal protection claim, Mr. Thomass conclusory
allegations are not enough to state a claim. Mr. Thomas must allege that he was
treated differently from similarly situated individuals. See City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Mr. Thomas only states that his

property was disposed of unlike similarly situated inmates and offers no

additional information beyond that. This conclusory statement alone is
insufficient to demonstrate that similarly situated persons were treated differently.
See Jennings v. City of Stillwater, 383 F.3d 1199, 1209-10, 1213-14 (10th Cir.
2004).
Regarding Mr. Thomass claim that he was subjected to cruel and unusual
punishment, Mr. Thomass allegations are not sufficiently grave to rise to the
level of an Eighth Amendment violation. When inmates are deprived of the
minimal civilized measure of lifes necessities as measured under a
contemporary standard of decency, there may be an Eighth Amendment violation.
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, Mr. Thomass claim
that he was deprived of his personal belongings does not rise to this level. Mr.
Thomas alleges neither that he was deprived of essential human needs nor that
prison officials acted with deliberate indifference to inmate health or safety, and
thus, he does not state a claim for cruel and unusual punishment. See Perkins, 165
F.3d at 809 (An Eighth Amendment claim has both an objective
componentwhether the deprivation is sufficiently seriousand a subjective
componentwhether the official acted with a sufficiently culpable state of
mind); Gillihan, 872 F.2d at 941 (Plaintiff, here, did not allege a deprivation of
essential human needs. Rather, he alleged that he was deprived of what little
luxury he had. While such a deprivation may be restrictive and even harsh, it
6

did not amount to the infliction of cruel and unusual punishment (internal
citation omitted)).
The district court also addressed a state fraud claim that was suggested by
Mr. Thomass pleadings. Because all federal claims had already been dismissed,
the district court dismissed Mr. Thomass state fraud claim without prejudice.
This was an appropriate means of addressing the fraud claim and the district court
did not err. See Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 549
(10th Cir. 1997) (If federal claims are dismissed before trial, leaving only issues
of state law, the federal court should decline the exercise of jurisdiction by
dismissing the case without prejudice. (internal quotation marks and citation
omitted)).
For the reasons stated above, the district court is AFFIRMED. We also
GRANT Mr. Thomass request to proceed in forma pauperis. He is reminded of
his obligation to continue making partial payments until the entire fee for this
appeal is paid in full.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge